How does Palestine prepare for the battle at the ICC?

Palestine not only applied to join the International Criminal Court, but also backdated its acceptance of the court’s jurisdiction to June 13 2014, ensuring that the ICC prosecutor would launch a preliminary examination. Exactly what the ICC prosecutor will examine and what conclusions she will come to are unknown. Both sides are likely to try and influence her decisions by supplying her with material. Yesterday we wrote about what’s known of the Israel approach. Now we examine what’s been said publicly about how the Palestinians may be trying to influence the ICC.

The Palestinian Authority has offered relatively little detail about their plans . Palestinian foreign minister Riyad al-Malki sketched their approach in this interview:

“the Palestinian Authority has contacted the offices of some prominent attorneys experienced in lawsuits before the ICC, in order to explore the possibility of pressing charges regarding the situation in Palestine. We have already hired international experts and specialists in this field to help us.”

But he made it clear that that the details would remain confidential “in order not to provide the other side (Israel) with a weapon that it can utilize.”

Out of the Gaza Strip, several news agencies reported an enthusiastic response from Hamas – the governing Islamist political and military grouping– welcoming a chance to make use of the ICC mechanisms quoting Fawzi Barhoum, a spokesman for Hamas:

“What is needed now is to quickly take practical steps in this direction and we are ready to provide (the court) with thousands of reports and documents that confirm the Zionist enemy has committed horrible crimes against Gaza and against our people,” he said in a statement.

But these political statements seem to mask some degree of confusion about how exactly the ICC works. For instance this story from the Jerusalem Post suggests that that some members of the central committee of the West Bank’s ruling Fatah party think they can present evidence to the court concerning the death of former leader Yasser Arafat – who died in suspicious circumstances back in 2004.

An official is quoted as saying “We want to bring the Israeli occupation to trial for every crime it committed against our people.”

The ICC however does not work like that. As academic Kevin Jon Heller pointed out, Palestine has only given the ICC jurisdiction over crimes back to June 2014. Which would rule out any investigation of Arafat’s death . Not to mention the issue of Palestine not being recognised as a state back in 2004.

Another report from the Times of Israel also suggests officials within the PA may have some confusion on how the court works. A senior official in Ramallah was quoted saying:

“the first subject to be brought before the International Criminal Court at The Hague in the Palestinian Authority’s legal campaign against Israel would be settlement construction”.

While settlements may come under the court’s remit, the piece goes on to quote him as saying

“ the appeal to the ICC would be withdrawn if Israel were to freeze settlement construction” which again shows a failure to understand the autonomy of the prosecutor and the impossibility of Palestine “withdrawing” a complaint.

However – more sensibly – the piece also says that Palestine may be seeking to curtail too many parties lobbying the court and may be trying to streamline which information is provided to the prosecutor.

“The official also said that the PA had asked the court for assurances that Palestinian petitions to the ICC would only be accepted if they were made through the Palestinian delegation at The Hague. This was done to prevent petitions by unofficial Palestinian entities.”

It looks like the first priority for the Palestinan side should be understanding exactly how the court works: that the prosecutor examines a whole situation, that the prosecutor has the legal discretion to decide on the submitted merits, and that she does not pick and choose according to what the rivial parties demand of her. Maybe that is what the legal counsel Palestine will employ will be explaining to their clients first.

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To what extent will the Palestinian statehood issue be argued and counter-argued before the ICC?

Is Palestine trying to use its relationship with the ICC as a barganing chip for further negotiations with Israel?

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